Employee Solicitation – Do You Have Any Recourse?

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We have often reported on how courts enforce, or do not enforce, non-compete and non-solicitation clauses. But those cases have focussed on the solicitation of the former employer’s customers or clients. What happens when a former employee solicits your employees to leave, leading to a series of resignations? Do you have any recourse?

Absolutely, a Quebec court said recently in Maibec Inc. v Martineau (PDF – available in French only) where a former employee, Mr. Martineau, was accused of breaching his duty of loyalty and non-solicitation undertaking after he lured away another employee.

The former employer sued Mr. Martineau, its former Director of Information Technologies and Communications, for damages caused by the departure of another employee. According to the Quebec court, employers who want to protect their workforce are entitled to have their executives and other employees sign employee non-solicitation clauses. And these may be liberally enforced.

THE FACTS

Mr. Martineau had been hired by the employer in 2008. When he began his job, he signed an non-solicitation of employees undertaking.

Mr. Martineau quit his job in July 2011. He left to work in a similar job, but for a business in an entirely different industry.

Two months later, another of the employer’s employees, Mr. Boyer, quit his job. Mr. Boyer had been a programmer-analyst, reporting directly to Mr. Martineau. Not surprisingly, Mr. Boyer left to go work with Mr. Martineau’s new team.

The evidence revealed that Mr. Martineau had taken steps to find out if Mr. Boyer would be interested in a job as a programmer-analyst with his new employer:

  • Mr. Martineau asked Mr. Boyer if he knew of a good programmer-analyst who would like to work for his new team; and
  • Mr. Martineau was aware of Mr. Boyer’s areas of interest, and presented him with projects that were specifically geared towards that type of work.

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